Review of TV Decency Law Looks Beyond Bared Breast

By MICHAEL JANOFSKY

Published: February 12, 2004

WASHINGTON, Feb. 11—
The widespread criticism of a Super Bowl halftime show on CBS that featured one singer grabbing his crotch and another baring her breast reached the Capitol on Wednesday as lawmakers gathered support for measures that would strengthen laws against indecency on television.

Executives from Viacom, the company that owns CBS and MTV, which produced the halftime show, and from the National Football League testified before the House subcommittee on telecommunications and the Internet. They apologized for performances that lawmakers said demonstrated how loose standards had become.

The subcommittee, as well as the Senate Commerce Committee, also heard from the five commissioners of the Federal Communications Commission, who generally agreed that greater powers and stiffer fines would prompt media companies to prevent the broadcast of words and actions considered indecent.

Both hearings played out against news that the nation's biggest cable systems operator, the Comcast Corporation, had made an unsolicited takeover bid for the Walt Disney Company, which owns ABC and ESPN. Several lawmakers suggested that such media consolidation -- in which fewer companies provide increasing amounts of programming that may offend some communities -- might account for the rising number of complaints about indecency.

''The now-famous display during the Super Bowl halftime show, which represented a new low in prime time television, is just the latest example in a growing list of deplorable incidents,'' Michael K. Powell, chairman of the F.C.C., told the Senate committee. He picked up on the theme later in the House, telling lawmakers, ''I share the displeasure and fatigue of millions of American about the erosion of common decency on television.''

The House is considering a measure that would increase tenfold, to $275,000, the maximum fine the F.C.C. could levy against a station or network. The Senate committee has already approved increases in fines and a measure that would require a license revocation hearing upon the finding of indecency. For now, a hearing is held at the discretion of the commission, although no license has ever been revoked as a result of an indecent act on television or radio.

The Congressional efforts, both bipartisan, were well under way before the Super Bowl in Houston on Feb. 1. They were fueled in large measure by the soaring number of complaints about indecency to the F.C.C., nearly 250,000 in 2003 from just 346 in 2001, and the dearth of cases that resulted in action. From 2001 to 2003, the F.C.C. issued just 17 notifications that a violation had occurred and that fines were possible.

The Super Bowl halftime show included Justin Timberlake ripping the costume worn by Janet Jackson, exposing her right breast. Earlier, the singer Nelly placed his hands on his crotch during a dance number.

Mel Karmazin, president and chief operating officer of Viacom, told lawmakers that no one from Viacom, CBS or MTV had prior knowledge of the breast-baring stunt, saying, ''We were duped.'' But he promised to take full responsibility for what had happened.

He vowed that new procedures, like a five-minute delay that was put in place for the Grammy Awards show that was broadcast a week after the Super Bowl, would help prevent any future displays of offensive speech and behavior. He also said he would reconsider what he described as an entertainment industry custom, that performers generally do not sign contracts for their services, a circumstance that would allow performers to avoid fines and penalties.

But he dismissed a suggestion by several lawmakers that stiffer fines would automatically deter such incidents.

Arguing that the level of fines proposed would ''devastate small broadcasters,'' he said the public would be better served if the F.C.C. clarified the definition of ''indecency'' to provide a legal understanding for what was permissible.

The agency's rulings have been called ambiguous. The agency's enforcement division ruled that the use of an epithet by the rock star Bono at last year's Golden Globe Awards on NBC did not constitute a violation because he used the word as an adjective, not a verb. Mr. Powell has asked the division to reconsider.

''I urge the F.C.C. to undertake rule-making on the subject of indecency so people can operate with responsibility and have a clear-cut road map for what constitutes indecency,'' Mr. Karmazin said in response to a question from Representative Eliot L. Engel, Democrat of New York. ''That would be a huge, huge step.''

Mr. Powell called questions about the definition of indecency ''a red herring,'' adding, ''there is no ambiguity with the indecency standard. It has existed for 30 years.''

Paul Tagliabue, commissioner of the N.F.L., said he was ''deeply embarrassed'' by the halftime show and attributed it to ''my own ineptitude and the ineptitude of others.'' But he took no position on whether fines should be increased as a deterrent.

''It happened,'' he said of the show. ''It happened under our operation and we take responsibility for it.''

Photos: Paul Tagliabue, commissioner of the N.F.L., left, and Mel Karmazin, president of Viacom, foreground, testified yesterday before the House subcommittee on telecommunications and the Internet.; The halftime display was ''a new low in prime-time television,'' Michael K. Powell, the Federal Communications Commission chairman, said. (Photographs by Carol T. Powers for The New York Times)